2008 PLP 1048 (MLD)

MUHAMMAD ALAM KHAN, J.

Kamal-ud-Din petitioner has brought instant petition under section 489, Cr.P.C. read with section 561-A, Cr.P.C. through which he has challenged the order of Mr. Muhammad Zafar Khan, Additional Sessions Judge No-IV, Kohat, dated 10-7-2007, taking cognizance of the complaint of the respondent, dated 26-5-2007 and while repelling the preliminary objection of the petitioner with respect to the non-maintainability of the complaint, directing the respondent to execute bail bonds in the sum of Rs.1,00,000 with two sureties for Court attendance and also held that the respective contentions of the parties would be resolved after recording of evidence.

2. Briefly narrated the facts of the case are that on 26-5-2007, Fakhr-ud-Din respondent filed a complaint under sections 3, 7 of the Illegal Dispossession Act, 2005, to the effect that the respondent has illegally and with force occupied the land of the complainant comprising Khasra No.1091 along with `Abadi' over some of the portion, situated in the area of village Kharmato, Kohat. It was further averred by the complainant that the respondent has got no concern with the said property and this illegal act of the petitioner comes within the ambit of sections 3 and 7 of the Illegal Dispossession of Act, 2005.

3. The learned trial Court after complying with the provisions of section 200, Cr.P.C. issued notice to the petitioner, namely, Kamal-ud-Din petitioner before this Court. On his appearance before the trial Court, he raised an objection to the maintainability of the complaint under the provision of the Act ibid.

4. The learned trial Court after hearing the arguments of the learned counsel for the parties and perusing the available data on the record, over-ruled the preliminary objections vide the impugned order, dated 10-7-2007 and hence the present quashment petition.

5. Kamal-ud-Din petitioner and Fakhr-ud-Din respondent are present in person. Learned counsel for the petitioner submitted written arguments, placed on file.

6. It was submitted by the petitioner that the dispute is of civil nature, regarding which the petitioner has filed a civil suit titled Kamal ud-Din v. Fakhr-ud-Din and others on 17-1-2006, which is pending and in which he has challenged the partition between the parties, vide deed, dated 29-5-1995." It was also argued that the provisions of the Illegal Dispossession Act, 2005 are not applicable to the instant case. Reliance was placed on the case of Zahoor Ahmad and 5 others v. The State and 3 others (PLD 2007 Lahore 231).

7. On the other hand, the respondent submitted that the complaint was at the initial stage and the learned trial Court has not passed any final order so far and thus the quashment petition filed by Kamal-ud-Din petitioner is premature. The learned Additional Advocate-General appearing on behalf of the State supported the impugned order.

8. I have given due consideration to the facts of the instant case and the legal questions involved in it. Perusal of the record reveals that the complainant has filed the complaint, which on the face of it finds its support from the Revenue Record i.e. the `Jamma Bandi' for the year, 2001-2002 and the `Khasra Girdawari' annexed with it, where Fakhr-ud-Din respondent has duly been recorded as owner in possession. The learned trial Court has only issued a notice to the respondent in the main complaint, namely, Kamal-ud-Din petitioner before me to appear in response to the complaint filed by the complainant, namely, Fakhur-ud-Din. On his appearance, the petitioner raised preliminary objection to the maintainability as well as applicability of the provisions of Illegal Dispossession Act and to the complaint filed by the respondent under the Illegal Dispossession Act, 2005, on which the learned trial Court has recorded tentative finding and held that the crux of the matter will be decided after recording of evidence. No final order or any substantial order has been passed by the learned trial Court and the bail bonds required from the petitioner Kamal-ud-Din were only to secure his attendance before the Court.

9. The dictum laid down in the case of Zahoor Ahmad referred to above is not applicable to the facts of the instant case, because subsequently the apex Court in the case of Rahim Tahir v. Ahmad Jan and two others, reported in PLD 2007 SC 423, has held that the provisions of Illegal Dispossession Act, 2005 are not only applicable to the land grubbers and land Maphia, but would be applicable to all cases of illegal occupants without any distinction and any act violative of the provisions of Illegal Dispossession Act, 2005 would be amenable to the jurisdiction of the competent Court.

10. The order of learned trial Court is just, legal and in consonance with the established principles of law and is not liable to interference in the quashment jurisdiction of this Court under section 561-A, Cr.P.C. In view of the facts and circumstances of the case narrated above, this petition fails, which is hereby dismissed. Resultantly the interim order, dated 1-8-2007 passed by this Court and confirmed on 12-11-2007 is vacated. Parties are directed to appear before the trial Court on 28-2-2008. H.B.T./45/P Petition dismissed.